Fairchild Engine and Airplane Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1944

55 N.L.R.B. 792 (N.L.R.B. 1944)

In the Matter of FAIRCHILD ENGINE AND AIRPLANE CORPORATION and
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, C. I. O.
In the Matter of FAIRCHILD ENGINE AND AIRPLANE CORPORATION and
THE INTERNATIONAL ASSOCIATION OF MACHINISTS
Cases Nos . C-2107 (5-C-1237) and C-2108 (5-C-1353) respectively
SUPPLEMENTAL FINDINGS OF FACT
AND
RECOMMENDATION
March 28, 1944
On May 30, 1942, the National Labor Relations Board, herein called
the Board, issued a Decision and Order in this case,' in which it found
that Fairchild Engine and Airplane Corporation, Hagerstown, Mary-
land, herein called the respondent, had engaged in and was engaging
in certain unfair labor practices affecting commerce, and ordered the
respondent to cease and desist therefrom and take certain affirmative
remedial action. The Board found, among other things, that, on
March 7, 1941, the respondent had discriminated in regard to the hire
and tenure of employment of James B. Cole by discharging him in
violation of Section 8 (3) and (1) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. To remedy this unfair labor
practice, the Board directed the respondent to reinstate Cole and to
make him whole for any loss of pay sustained by reason of the respond-
ent's discrimination.' On or about November 4, 1942, the respondent
141N L . R B.521.
2 Cole was employed by the respondent as a skilled carpenter from May 1940, until
March 1941 , when he was discharged , allegedly for "unsatisfactory work, probably due
to ill health " During the first 6 of Cole ' s 10 months ' employment with the respondent,
his work was concededly satisfactory . However , atter Cole joined the C I O. in October
1940 and appeared as its enthusiastic advocate, he became subject to the hostility and
harassment of Superintendent DeLauder , who warned Cole, when he refused to join an
inside union, that his C I 0 activity endangered his job Cole, an easily excitable person,
was thereafter the subject of frequent baiting, encouraged and led by DeLauder , who fre-
quently began arguments with Cole about controversial subjects , including labor unions, on
which he held strong opinions , in order to "get him going," and on such occasions Cole vigor-
ously defended the C . I. O. Chiefly because of this, the respondent ascribed to Cole "an un-
controllable nervous condition " On one occasion , in January 1941, as a result of a
warning against " talking," Cole allowed himself to be goaded by a fellow employee into
placing a piece of Scotch tape over his mouth ; and the fellow employee placed a small
sign reading, "I can't talk ," on Cole 's back DeLauder scolded Cole for his and reported
to higher management that Cole had caused a distuibance in the plant. No further in-
55 N. L. R . B., No 144
792
FAIRCHILD ENGINE AND AIRPLANE CORPORATION 793
filed with the Board a petition suggesting, in substance, that Cole was
unfit for reinstatement in his former employment and requesting that
a physical and mental examination of Cole be made by competent
medical authority to determine his fitness.3 On November 18, 1942,
the Board denied the petition.
The Board thereafter petitioned the United States Circuit Court of
Appeals for the Fourth Circuit to enforce its Order against the re-
spondent. On January 13, 1943, the Court handed down its opinion
and entered its Decree, directing that all provisions of the Board's
Order be enforced except the provisions respecting the reinstatement
and back pay of Cole, and that enforcement of the provisions respect-
ing the reinstatement and back pay of Cole should await a determina-
tion by the Board as to the present condition of health of Cole and his
fitness for the type of employment in which he was engaged when dis-
charged. For the purpose of having the Board make this determina-
tion, the Court remanded the proceeding to the Board with directions
to hear evidence and make such findings and such modifications, if any,
of its original order as may be appropriate 4
On May 21, 1943, the Board issued an order, remanding the pro-
ceeding to its Regional Director for the Fifth Region for the purpose
of conducting a hearing in accordance with the aforesaid Decree of
the Court, and authorizing the Regional Director to issue notice of
such further hearing in this proceeding.
Pursuant to notice, a hearing was held at Baltimore, Maryland, on
August 30 and September 23, 1943, before a Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
and United Automobile, Aircraft and Agricultural Implement Work-
ers of America, C. I. 0.,5 were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties.
On the final day of the hearing, the respondent called one Harseck,
superintendent and personnel manager of Victor Products Corpora-
cident occurred up to the time of Cole's discharge Nevertheless, a series of reports were
fabricated to the effect that Cole "resented supervision ," that "he did not seem to get along
with others ," and that he was "distracting other workmen" Cole's immediate superior,
Marvin S Fox , testified that Cole was a good workman , and that his health was such
that he could do his work satisfactorily. The Boamd found that Cole had not been a
disturbing influence in the plant, and that the state of Cole's health was not a factor in
his discharge As hereinafter appears, these findings have been upheld by the Fourth
Circuit Court of Appeals in proceedings for entorcement of the Board ' s order
3In the petition the respondent stated that ". the Respondent has been informed
that the said Tames B. Cole has since 1925 been an applicant to the Veterans ' Administration
for disability compensation, and that he has been and now is a victim of neurasthenia,
constitutionally inferior, and that his mental activity is sub -normal, to such an extent that
his employment in the plant or plants of the Respondent should not be favorably con-
rideied "
4 Y. L. R. B. V. Fadrehild Engine and Airplane Corporation , No. 5033 The Court's
opinion , not officially reported , may be found in 12 L R R 87 In its opinion the Court
found that " . the order of the Board is sustained by substantial evidence
One of the labor organizations which filed charges in this proceeding
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, for wham Cole worked after his discharge by the respondent, and
sought to show that Cole had misconducted himself while employed by
Victor. The witness had no personal knowledge as to the matters
sought to be elicited by counsel for the respondent, and Board coun-
sel objected on that ground. The Trial Examiner sustained the objec-
tion.' Just before the close of the hearing that day, counsel for the
respondent moved for all "opportunity of presenting the witness who
can personally testifyed [sic] from actual observation . .. that [Cole]
resented supervision, very of ten cursed everybody in the gang and the
Government, he had no respect for supervision, indicated an attitude
that lie wanted to be boss.'' ' The Trial Examiner denied the motion
for a continuance. The respondent complains of this action. We do
not think that the Trial Examiner erred in thus exercising his dis-
cretion. Prior to this, the respondent had been granted a continuance,
and more than 3 weeks had elapsed since Cole had given his testi-
mony With respect to his employment at Victor Products. Except for
the fact that counsel for the respondent had assumed that Harseck's
testimony was admissible, an unwarranted assumption, no explana-
tion was offered for not producing Cole's immediate superior, or any
other person having knowledge of the alleged facts, as a witness prior
to the close of the hearing. In any event, in view of Cole's unblem-
ished employment history extending over a period of more than 20
years, we are not convinced that Cole's alleged misconduct while
employed at Victor Products Corporation, being relatively isolated in
character, renders Cole emotionally unstable or otherwise unfit for
reinstatement. During the course of the hearing the Trial Examiner
made rulings on other motions and on other objections to the admis-
sion of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
Pursuant to Article II, Sections 36 and 37, of National Labor Rela-
tions Board Rules and Regulations-Series 3, on December 17, 1943,
the Board ordered that the proceeding be transferred to and continued
6 However , the Trial Examiner permitted Harseck to testify, for the purpose of impeach-
ing Cole's testimony with respect to the circumstances surrounding the severance of his
employment at Victor, as to reports received by Harseck from subordinates as to Cole's
alleged misbehavior Cole had testified that lie left Victor when he had a disagreement
with the manager in connection with a claimed violation of a no-smoking rule. According
to Cole, he had no prior notice of the alleged existence of such a rule, that he stopped
smoking when told, and that he decided to quit when the manager continued to scold him
about the matter. The manager dud not testify Harseck testified that Cole was dis-
charged because of alleged tardiness and because of matters hereinafter set forth How-
ever, 1-larseck had incomplete employment records ; the employment records were not
offered in evidence; and, as stated above, he had not peisonally obserNed any misconduct
by Cole We find that the teimmatiou of Cole's employment with the Victor Products
Corporation was occasioned by the smoking incident
Counsel for the respondent did not indicate when he could present the witness More-
over, lie stated at the hearing that he had not interviewed the prospective witness and,
except for reports, counsel for the respondent had no knowledge as to what such witness
could testify to.
FAIRCHILD ENGINE AND AIRPLANE CORPORATION 795
before the Board and issued its Proposed Supplemental Findings of
Fact and Proposed Recommendation. On or about January 8, 1944,
the respondent filed exceptions and a brief in support thereof.
Pursuant to notice and at the request of the respondent, a hearing
was held before the Board at Washington, D. C., on January 25, 1944,
for the purpose of oral argument. The respondent and the Union
were represented by counsel and participated in the hearing.
The Board has considered the respondent's exceptions and brief and
finds the exceptions to be without merit.
Pursuant to the remand by the United States Circuit Court of Ap-
peals for the Fourth Circuit and upon consideration of the entire
record in the proceeding, the Board hereby makes the following :
SUPPLEMENTAL FINDINGS OF FACT
In the interval between the Court's remand order and the further
hearing before the Trial Examiner pursuant to the remand, Cole was
examined by two psychiatrists, Dr. Irving J. Spear 8 and Dr. Esther
L. Richards,° both of Baltimore, at the request of Board agent to
At the second hearing Spear and Richards 11 testified as to Cole's
condition.12 Both agreed that Cole's physical condition and intelh-
8 Spear ' s qualifications include the following : Graduate , Medical School , University of
Maryland, 43 years ago ; head of Department of Nervous Diseases and professor of nervous
diseases and clinical professor of psychiatry at the University of Maryland for at least the
last 15 years ; author of textbook on diseases of the nervous system ; in private practice
about 38 or 39 years , of which at least 34 or 35 years have been confined entirely to diag-
nosis and treatment of mental and nervous diseases
'Dr Richards was graduated from Johns Hopkins Medical School in 1915 and has
practiced psychiatry since graduation as a staff member of the Henry Phipps Psychiatric
Clinic of Johns Hopkins Hospital She is at present psychiatrist in charge of the Out-Pa-
tient Department of the Phipps Clinic, associate professor of psychiatry at Johns Hop-
kins Medical School , associate psychiatrist of the Johns Hopkins Hospital , and Psychiatrist-
in-chief of the Psychiatric Division of the Baltimore City Hospital
"'Cole was examined in the Phipps Clinic in March 1943 Dr. Richards ' report of the
examination , introduced in evidence as Respondent 's Exhibit 26, is dated April 28, 1943
Dr Spear made his examination on August 9, 1943, His report of that date is Board's
Exhibit 16 The examinations were complete and thorough , and included a physical exam-
ination , a neurological examination , and a mental examination consisting of a personality
study , a psychometric examination, and a psychiatric examination
11 Counsel for the respondent objected to introduction of any evidence . other than the
report of Dr. Richards covering her examination of Cole and her findings with respect
thereto , on the ground that an agreement was entered into between the respondent and
the Board 's Regional Director according to which Cole's fitness was to be determined
solely by the findings at Johns Hopkins Regional Director Ascher denied that any such
agreement had been made We credit Aicher ' s explanation , given at the hearing, that
these was an agreement of the charactei described for settlement of the unfair labor
practice charge with respect to Cole's dischaige prior to the issuance of the Board's
complaint. but that the respondent disowned the agicenrent and iefused to perform it, that,
in Frbruaiy 1943 lie discussed the Couii s ordei with the repondent's iepresentative,
and that an arrangement was made to submit Cole for examination to Julius Hopkins
Hospital , but that nothing was said as to whether the hearing on the remand would be lnn-
ited to introduction of evidence as to the examination and findings at Johns Hopkins
Aicher's testimony with respect to the limited scope of the last-mentioned arrangement
for the examination of Cole was corroborated by a union representative who was present
and participated in the making of the arrangement . The Trial Examiner overruled the
respondent ' s objection We hereby of ,iii his ruling
12 Cole, aged 48, has 'a oiked as a carpenter for approximately 22 years He served in
the United States Aimy in 1918-1919 , and fought overseas but was not injured in any
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gence are such as to qualify him for reinstatement.13 However, Dr.
Richards concluded that Cole is emotionally unstable. She found
that, while employed by the respondent, Cole had reacted to teasing
with "temper tantrums," and that he had "a fixed martyr complex"
as a result of this litigation. For these reasons, she recommended that
it would be unwise, from the standpoint both of the respondent and
of Cole's mental health, to reinstate Cole. On the other hand, Dr.
Spear found that Cole showed "no unusual emotional instability" and
that there were no symptoms "which would make me even suspicious
that Mr. Cole is affected with a psychosis." 14
The record discloses, and we find, that Cole is presently in good
health in all respects and fit for the type of employment in which he
was engaged at the time of his discharge by the respondent. Clearly,
he is in good physical condition, and his mental activity, contrary to
the allegation in the respondent's petition filed with the Board in
November 1942, is not subnormal. Cole has above normal capacity
for industrial workers.15 He suffers from no mental or nervous dis-
order. Dr. Richards' characterization of Cole as emotionally unstable
rests largely upon his reactions when teased by others in the respond-
ent's plant. We accept the testimony of Dr. Spear that such reac-
tions were normal under the circumstances.16 Furthermore, Dr. Rich-
way and was honorably discharged without disability. In 1925 and 1939, Cole applied for
a veteran's pension, claiming that he was suffering from neurasthenia, but these applica-
tions were denied by the veterans Bureau. According to Dr. Richards' report, Cole ex-
plained these applications in the following language: "A Ma] Gen G Caine to one of oar
veterans' meetings and told us boys that anybody who'd been in the fighting could get a
pension. I didn't have anything wrong with me but I thought if everybody was- going
to get one I may as welL try They told me to put down neurasthenia." Dr Richards
concluded that these "applications appeared to have been motivated more by someone
else than [Cole's] own feelings of poor health." At the time of the second hearing
Cole was employed by Brandt Cabinet Works, Hagerstown, Maryland, as a woodwork
assembler on planes, work similar to that which he did while employed by the respondent.
Since his discharge by the respondent, Cole has worked at his trade either for himself
as an independent building contiactor or for others as an employee with one possible
exception, he left these jobs either to better himself or because the work had been com-
pleted. In the one instance in question, Cole either quit or was discharged in connection
with an alleged violation of a no-smoking rule . In no case has any fault been found with
his work
13 Cole is in good physical condition and has the intelligence of at least the average
industrial worker.
14 In this connection Dr Spear testified • " . . having spoken to [Cole] and discussed his
problems with him, be exercised good control I mean , be was not mad and he was not
resentful and he was not upset in any way. He acted in a perfectly normal way, better I
think than the average person would under the circumstances."
15 Cole rates 90, which represents the mental capacity of the average normal adult in all
walks of life.
16 Dr Spear explained Cole's conduct as follows: " ... [Cole] got along very nicely with
everybody until . . . there was . . . labor agitation in the plant and at that time he be-
came a rather ardent supported of the C. I. O. which evidently displeased the managers of
the plant. . . . From that time on he seemed to have some trouble, not with his immediate
superior [Fox] . ; Fox got along all right with him . . . but his trouble seemed to be
with a group of men who were more interested in a company union-DeLauder . . . and
other men who seemed to be inciting him to argument most of the time; . . . [Cole's] re-
actions were very normal for an individual who was interested in the betterment of his
class. When people are interested in their environment, in trying to better themselves
FAIRCHILD ENGINE AND AIRPLANE CORPORATION 797
ards, in reaching her conclusion as to Cole's emotional stability, relied
upon reports of Cole's misconduct in the plant which the Board dis-
credited in its original decision. Moreover, as the Board found in
its original decision, Cole's conduct as an employee of the respondent
prior to the advent of the C. I. O. was satisfactory to the respondent,
and his subsequent difficulties were directly traceable to the respond-
ent, inasmuch as its superintendent and other employees, following
the superintendent's example, goaded Cole into arguments. Absent
such provocation, we see no reason to believe that Cole cannot con-
tinue to conduct himself satisfactorily as an eniployee,17 especially
since labor relations in the plant have become stabilized since Cole's
discharge.ls For these reasons, we conclude that it will effectuate the
policies of the Act to require the respondent to reinstate Cole with
back pay.
RECOMMENDATION
Upon the basis of the above supplemental findings of fact and of
the entire record in the proceeding, the National Labor Relations
Board hereby respectfully recommends to the United States Circuit
Court of Appeals for the Fourth Circuit that the Board's Order of
May 30, 1942, respecting the reinstatement of James B. Cole with back
pay, be enforced.
and others, they usually came in contact with old established customs, and the people who
are respon,ible for them, and these conflicts cause a certain amount of disturbances in
their environment, and that is exactly what happened to Mr Cole He was doing what
he thought right and he conducted himself well Ile did not cone into any physical con-
flict with anybody ; he argued and he sometimes became mad and sometimes when his
sense of humor probably got the better of his angel, he would do things which are not
unusual for people of this particular group I mean like pasting the piece of plaster
over his mouth and wearing a cardboard saying he wouldn't talk . that is a trick which
men . . . . do sometimes when they by to shame those with whom they come in contact,
into behaving a little better ... they are things that people do every once in awhile who
have a sense of humor ; they are foolish things but they do them anyhow . . . [his emo-
tional stability] is about the average I don't think this man is any different from the
average working man, or the average any man I mean, he got mad sometimes but that
is usual I get mad sometimes, not with cause."
^7 Even Dr Richards believes, as she testified, that Cole is not emotionally unfit for
service elsewhere or for employment by the respondent in a segregated poition of its plant.
18 The respondent has recognized the C 1 0 and is now operating under a contract with
that labor organization, enjoying peaceful relations